Lobatse High Court Judge Justice Michael Leburu this week ruled that the four percent salary increase by the government will not stop the Botswana Federation of Public Sector Unions (BOFEPUSU) from bargaining for a higher increase or seek redress through a normal court process rather than on urgency.
BOFEPUSU had applied for a High Court order to restrain President Ian Khama and the Director of the Directorate of Public Service Management (DPSM) Carter Morupisi from making pronouncements on public service salary negotiations and also reverse government’s decision to increase public servants salaries by four percent. He said he failed to perceive any prejudice suffered or likely to be suffered by BOFEPUSU if such interim four percent award is not stopped on urgency. “In other words, how will the said positive award derail the applicants from obtaining redress or bargaining for a higher increase in due course when negotiations have not even started, I ask,” wondered the judge.
Leburu said the conclusion and findings of the bargaining process should not to be second guessed. “I also fail to see how the further distribution of a document (directive announcing four percent salary increase) already in circulation will prejudice or deprive them of substantial redress or further bargaining. A declaratory order may also be available to them in the normal course and not urgency touching jurial implications making such further distribution of the said Directive whilst negotiations are ongoing and at this juncture I advise the parties to do the needful and return to the bargaining table,” he said. Leburu also found that BOFEPUSU application did not satisfy the requirements of urgency adding that negotiations have not commenced. “Furthermore such negotiations have not been cancelled nor stopped.
The parties to the bargaining council still have ample time to negotiate,” he said. The judge said to conclude that BOFEPUSU will not have substantial redress from such bargaining process would be tantamount to second guessing the outcome of the negotiations to that extent; avenue for obtaining substantial redress is still extant and available from the Public Service Bargaining Council. “There is even a possibility of mediation which further opens another avenue for getting redress with regard to how much salary award should be awarded,” he also added. He said BOFEPUSU’s fear that the unilateral statements made by President Ian Khama will be repeated, “in my view are highly speculative in nature.” “Furthermore, I fail to appreciate the urgency of seeking a declaration of rights on urgent basis, regard been had to the fact that a declarator, merely defines the rights and duties of the dispundants,” said Leburu.
He said both parties have bound themselves to negotiate in good faith as part of a collective bargaining process. He found that BOFEPUSU’s right to collective bargaining has not been taken away from the unions by Khama and Morupisi; hence they have not suffered any irreparable prejudice to bargain. The negotiation process is still to commence and as such it becomes difficult to fathom how the applicant’s will suffer prejudice if the orders sought are not granted on urgency. He therefore dismissed the application with costs.